Yesterday, the federal judge in Florida, Roger Vinson, allowed the lawsuit against the new health law to go forward. In his ruling, the Judge maintained that there were constitutional issues in play and formal hearings would begin mid-December. Specifically, the Judge discounted the Justice Department’s claim that 1) the individual mandate was a natural extension of the commerce clause – or the federal government’s ability to regulate interstate commerce; and 2) the penalty imposed by the individual mandate was equivalent to a tax.

However, Judge Vinson dismissed several claims made by the plaintiffs – 20 attorneys general, led by the Florida AG, Bill McCollum – including arguments related to state sovereignty. Nevertheless, he sided with the AGs that the use of the commerce clause was unprecedented and deserved a weighing of whether or not that exercise in federal power is constitutional. Vinson also went to great pains to dismiss the Justice Department’s argument that the penalty associated with the individual mandate was simply a tax. Interestingly, he honed in on the political discussions that occurred during the passage of the legislation when many promoting reform argued that the penalty was not a tax. Shouldn’t the semantics of taxation during political theater be irrelevant in the courtroom? I guess not.

As reported by the Volkh Conspiracy here, there is little discussion by Vinson regarding the Necessary and Proper clause – which is the strongest argument for the new health law. Millions of uninsured doesn’t translate into “necessary?” In U.S. District Court in Michigan, however, Judge Steeh maintained that the insurance mandate is constitutional and the overwhelming national crisis supersedes the concerns expressed by health reform foes: “The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers… These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers and the insured population who ultimately pay for the care provided to those who go without insurance.”

The Florida ruling is important because, alongside the Virginia ruling expected on Monday, it narrows the path for defendants and plaintiffs alike in how they argue the case. Clearly, the commerce clause will be the central constitutional question going forward. Should not purchasing health insurance be viewed as an active choice that may be regulated? We will hear many competing theories in the coming months – which theoretical frame will the Supreme Court choose? How will the pendulum swing? Stay tuned.

— Eva Marie Stahl, Policy Consultant